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Nothing is ever quite simple. That’s especially so for matters of copyright law.
Last week brought the news that the U.S. Copyright Office had reconsidered a copyright application and was accepting the registration of a joke. The quip in question? “Tom Brady said he wants to give his MVP truck to the man who won the game for the [New England] Patriots. So enjoy that truck, Pete Carroll.”
The author of the joke is Robert “Alex” Kaseberg, who is suing Conan O’Brien for lifting his work including that Tom Brady joke. The registration of the joke would presumably bolster Kaseberg’s copyright infringement lawsuit.
Not so fast.
O’Brien’s legal team has been questioning how the Copyright Office came to its latest decision. In court papers, the defendants have suggested that reconsideration was granted only after Kaseberg’s attorney misrepresented the summary judgment opinion in the case.
A word on that summary judgment opinion…
In May, U.S. District Court Judge Janis Sammartino signaled that a trial would be needed to resolve the question of infringement. In discussing the issue of similarity, the judge wrote that Kaseberg’s joke was only entitled to “thin” protection and so the plaintiff would need to show that O’Brien’s joke was virtually identical instead of substantially similar in order to prevail on claims.
According to O’Brien’s lawyer, the plaintiff’s counsel then took this and told the Copyright Office that the judge had determined his client’s material had met the originality requirement for copyright protection.
“But the Court did not make a finding of fact that the Tom Brady joke met the originality requirement,” writes O’Brien’s lawyer. “The Court’s statements were mere dicta, proffered with its finding that ‘virtually identical’ rather than ‘substantially similar’ was the appropriate standard for an infringement analysis. To be clear, Defendants never raised the issue of whether the jokes were sufficiently original to qualify for protection in their motion, and the issue was not otherwise before the Court. Lorenzo deliberately mischaracterized the order to the Copyright Office, and purposefully declined to provide the complete context. Given the Copyright Office’s change of course, this likely influenced its decision to issue registration.”
On Monday, the magistrate judge in Kaseberg’s suit agreed to reopen discovery on the issue of the registration of the Tom Brady joke. However, the judge refused to permit O’Brien’s legal team to depose Kaseberg’s lawyer as was demanded.
It’s a noteworthy development in the case because the defendants have signaled that they intend to amend their answer to Kaseberg’s claims to include unclean hands and fraud on the U.S. Copyright Office. In Sammartino’s opinion from May, the judge left the door open to a second summary judgment motion on deficiencies in the copyright applications. Meaning, O’Brien may still have a shot at avoiding a trial.
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